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Exhibit 4.8
FORM OF
SUBSCRIPTION AGREEMENT
, 1996
Asset Alliance Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
The Undersigned hereby subscribes for and agrees to purchase the number of
units (the "Units") set forth above the signature of the Undersigned at the end
of this Agreement, at a price of $250,000 per Unit. Each Unit consists of (a)
87,500 shares of the Common Stock, par value $0.01 per share (the "Common
Stock"), of Asset Alliance Corporation, a Delaware corporation (the "Company"),
and (b) 17,500 Redeemable Common Stock Purchase Warrants, each to purchase one
share of Common Stock (the "Warrants") . The Common Stock and Warrants being
hereby subscribed for are hereinafter referred to collectively as the
"Securities."
The Company shall have the right to reject this subscription in its sole
discretion, in whole or in part, and shall have the right to accept
subscriptions in an order other than that in which they are received.
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1. In order to induce the Company to accept this offer and to issue the
Securities to the Undersigned, the Undersigned hereby represents and warrants
to the Company that:
(a) The Undersigned is able (i) to bear the economic risk of investment
in the Securities, (ii) to afford a complete loss of such investment, and
(iii) to hold the Securities indefinitely.
(b) The Undersigned is acquiring the Securities for the Undersigned's
sole account (or, where applicable, in a fiduciary capacity), as
principal, for investment and without any intention of selling, pledging
or otherwise transferring all or any of the Securities; the Undersigned
has entered into no agreement or other arrangement with any person to
sell, pledge or otherwise transfer any of the Securities; the Undersigned
has no reason to anticipate any change in the Undersigned's circumstances,
financial or otherwise, or any other particular occasion or event that
would cause the Undersigned to sell, pledge or otherwise transfer, or
necessitate or require the sale, pledge or other transfer of, any of the
Securities; and no one other than the Undersigned has any beneficial
interest in the Securities.
(c) The Undersigned is an "Accredited Investor" within the meaning of
Regulation D under the Securities Act of 1933, as amended (the "Act"), as
evidenced, if the Undersigned is a natural person, by the Purchaser
Questionnaire being submitted herewith. If the Undersigned is an entity,
it is an Accredited Investor inasmuch as (i) it is an organization
described in Section 501(c)(3) of the
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Internal Revenue Code, or a corporation, or a Massachusetts or similar
business trust, or a partnership, (ii) it was not formed for the specific
purpose of acquiring the Securities, and (iii) it has total assets in
excess of $5,000,000.
(d) IF THE UNDERSIGNED IS A RESIDENT OF, OR HAS ITS PRINCIPAL OFFICE
IN, THE STATE OF ILLINOIS, the total subscription price for the Securities
does not exceed 20% of the Undersigned's net worth or, if the Undersigned
is a natural person, 20% of the Undersigned's joint net worth with the
Undersigned's spouse.
(e) If the Undersigned is a corporation, partnership, trust or other
entity, (i) it is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and has all the
requisite power and authority to enter into this Agreement and purchase
the Units as provided herein, (ii) such purchase will not result in any
violation of, or conflict with, any term of the charter or by-laws or
similar documents of the Undersigned, or any instrument to which it is
bound or any law or regulation applicable to it, (iii) such purchase has
been duly authorized by all necessary action on behalf of the Undersigned,
and (iv) this Agreement has been duly executed and delivered on behalf of
the Undersigned and constitutes a legal, valid and binding agreement
enforceable against the Undersigned in accordance with its terms.
2. The Undersigned acknowledges that the Undersigned, alone or with its
advisors, (a) has read, carefully considered and fully understood the
Company's Confidential Private Placement Memorandum (the "Placement
Memorandum"), relating to the offer of the Units, (b) has had satisfactory
access to other information concerning the Company and an investment in the
Units, and (c) has been afforded full and satisfactory opportunity to ask
questions to representatives of the Company regarding the Company and an
investment in the Units, and all such questions have been answered to the
full satisfaction of the Undersigned.
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3. The Undersigned acknowledges that it is not purchasing any Units as a
result of any form of general or public solicitation or general advertising,
including (a) publicly disseminated advertisements or sales literature,
through the mails or otherwise, (b) any advertisements, articles, notices or
other communications published in any newspaper, magazine or similar media
or broadcast over radio or television, or (c) any seminar or meeting whose
attendees have been invited by general solicitation or general advertising.
4. The Undersigned acknowledges that (a) the Securities have not been and
will not be registered under the Act or the securities laws of any state and
are being offered and sold in reliance upon exemptions from registration
provided by the Act and such laws and the rules and regulations thereunder,
(b) the Securities may not be offered, sold, pledged or otherwise
transferred except in compliance with the Act and such laws and the rules
and regulations thereunder, (c) the Securities must be held indefinitely
unless they are subsequently registered for resale or other transfer under
the Act or unless an exemption from such registration is available, (d)
except as provided in paragraph 5 hereof, the Company is under no obligation
to register the Securities for such resale or transfer, and (e) the Company
has not agreed or represented to the Undersigned that information with
respect to the Company as described in Rule 144(c) under the Act will ever
be made publicly available so as to permit the Undersigned to rely on Rule
144 for resales of the Securities.
5. The Company agrees that if at any time after the consummation of its first
Qualified Public Offering (as hereinafter defined) it shall determine to
register any addi-
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tional securities for its own account or for the account of any shareholder
exercising registration rights, other than a registration relating solely to
employee benefit plans on Form S-8 or any successor form, or a registration
on any registration form which does not permit secondary sales or does not
include substantially the same information as would be required to be
included in a registration statement covering the sale of Securities, the
Company will:
(i) Promptly give the Undersigned written notice thereof (which shall
include the number of shares the Company proposes to register and, if
known, the name of the proposed underwriter); and
(ii) Within thirty (30) days after the date of delivery of the written
notice from the Company described in clause (i) above, use all reasonable
efforts to include in such registration all the Securities specified in a
written request or requests made by the Undersigned. If the underwriter
advises the Company that marketing considerations require a limitation on
the number of shares offered pursuant to any registration statement, then
the Company may offer all of the securities it proposes to register for
its own account and for the accounts of the parties to the Shareholders
Agreement described in the Placement Memorandum or the maximum amount that
the underwriter considers saleable and such limitation on any remaining
securities that may, in the opinion of the underwriter, be sold will be
imposed pro rata among such other shareholders (including the Undersigned)
who request inclusion of Securities in such registration according to the
number of Securities each such shareholder requested to be included in
such registration.
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(iii) The Undersigned acknowledges and agrees that the Company shall
select the underwriter for an offering made pursuant to this paragraph 5.
The Undersigned acknowledges and agrees that the Company need not effect a
registration under this paragraph 5 if (i) in the written opinion of counsel for
the Company, the Undersigned may sell without registration under the Act all
Securities for which the Undersigned requested registration under the provisions
of the Act and in the manner and in the quantity in which the Securities were
proposed to be sold, or (ii) the Company shall have obtained from the Securities
and Exchange Commission a "no-action " letter to that effect. The Company agrees
that all registration expenses incurred in connection with any registration,
qualification or compliance pursuant to this paragraph 5 shall be paid by the
Company, other than fees and expenses of the Undersigned's legal counsel and
underwriting discounts or commissions with respect to the Undersigned's
Securities.
For purposes hereof, "Qualified Public Offering" shall mean the closing of an
underwritten public offering by the Company pursuant to a registration statement
filed and declared effective under the Act covering the offer and sale of Common
Stock for the account of the Company.
6. In no event will the Undersigned offer, sell, pledge or otherwise
transfer any of the Securities unless (i) the Company shall have received
from the Undersigned an opinion (in form satisfactory to the Company) of
counsel satisfactory to the Company that registration under the Act, and
under then applicable state law would not be required, or (ii) the
Securities shall have been so registered and/or qualified and an appropriate
prospectus, if required, shall then be in effect and current.
7. The Undersigned consents to the placing of a "stop transfer" order
against the Securities on the records of the Company.
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8. The Undersigned understands and agrees that any certificates
representing the Securities will bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE REGISTERED
HOLDER OF THESE SECURITIES HAS AGREED THAT NO SALE, PLEDGE OR OTHER
TRANSFER OF ANY OF SAID SECURITIES MAY BE MADE WITHOUT REGISTRATION
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW, UNLESS THE
HOLDER SHALL DELIVER TO THE ISSUER AN OPINION (IN FORM SATISFACTORY
TO THE ISSUER) OF COUNSEL SATISFACTORY TO THE ISSUER THAT NO SUCH
REGISTRATION IS REQUIRED.
9. The Undersigned understands that upon the acceptance by the Company of
its subscription, the Undersigned must make payment for the Units in
immediately available funds within three business days after the Company's
acceptance hereof. SUCH PAYMENT, IN THE AMOUNT OF $250,000 PER UNIT, MADE
PAYABLE TO THE ORDER OF ASSET ALLIANCE CORPORATION, MAY BE DELIVERED TO XX.
XXXXXX X. XXXXX AT THE COMPANY'S ADDRESS GIVEN ABOVE, OR IT MAY BE WIRED TO
THE COMPANY'S ACCOUNT AT CITIBANK, NYCABA# 021000089 FOR CREDIT TO ACCOUNT
# , ATTENTION: XXXXXXX XXXXXX, TELEPHONE (000) 000-0000. If such
payment is not made, the
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Company may revoke its acceptance of this offer and sell any or all of the
Securities for which the Undersigned has subscribed to other persons.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
11. This Agreement constitutes the entire agreement between the Company and
the Undersigned with respect to the subject matter hereof, and may e amended
only by a writing executed by the Company and the Undersigned.
12. The Undersigned will complete any other documents, and provide such
further information as is reasonably requested by the Company in its
discretion, in order that the Company may evaluate the suitability of the
Units as an investment for the Undersigned.
IN WITNESS WHEREOF, the Undersigned has hereby executed this Agreement as of
the date first set forth above.
No. of Units Subscribed for __________________
Purchase Price Payable
With Subscription: $250,000 x ______________ = $________________
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(No. of Units)
Manner in which Units are to be held (check one):
__________ Joint Tenancy with Right of Survivorship
__________ Tenancy-in-Common __________ Trust
__________ Community Property __________ Corporation
__________ Individual Ownership __________ Other (please indicate)
__________ Partnership
IF THE SUBSCRIBER IS AN INDIVIDUAL, PLEASE SIGN BELOW:
________________________________________ ______________________________
Print Name of Subscriber Signature of Subscriber
IF THE UNITS WILL BE HELD BY JOINT TENANTS OR TENANTS IN COMMON, OR AS
COMMUNITY PROPERTY, PLEASE HAVE THE CO-SUBSCRIBER SIGN BELOW:
________________________________________ ________________________________
Print Name of Spouse or Other Subscriber Signature of Spouse or Other Subscriber
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IF THE SUBSCRIBER IS A PARTNERSHIP, CORPORATION, TRUST OR OTHER ENTITY, PLEASE
SIGN BELOW:
_______________________________________
Print Name of Partnership, Corporation,
Trust or Other Entity
By:____________________________________ ______________________________________
Print Name of Authorized Representative Signature of Authorized Representative
Print Title:__________________________
The foregoing subscription is hereby accepted as of ____ day of
_____________, 1996.
ASSET ALLIANCE CORPORATION
By:______________________________
Xxxxxx X. Xxxxx
Executive Vice President
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ASSET ALLIANCE CORPORATION
Purchaser Questionnaire
Units (the "Units"), each consisting of (a) 87,500 shares of the Common
Stock, par value $0.01 per share, and (b) warrants to purchase 17,500 shares of
such Common Stock, of Asset Alliance Corporation, a Delaware corporation (the
"Company"), are being offered without registration under the Securities Act of
1933, as amended, in reliance on the private offering exemption provided in
Section 4(2) of the Act and Regulation D promulgated thereunder. The purpose of
this Questionnaire is to assure the Company that you are eligible to purchase
Units in this private offering.
THE COMPANY WILL NOT SELL UNITS TO ANY INDIVIDUAL WHO HAS NOT FILLED OUT,
AS THOROUGHLY AS POSSIBLE, THIS PURCHASER QUESTIONNAIRE. IF THE ANSWER TO ANY
QUESTION IS "NO," "NONE," OR "NOT APPLICABLE," PLEASE SO STATE.
Your answers will be kept strictly confidential at all times and will not
be disclosed except to Company management and its counsel, to governmental,
regulatory and similar authorities, if required, and to such other persons as
the Company deems appropriate if called upon to establish the availability of an
exemption of the Units from registration under the Securities Act or state law.
If you intend to hold Units as a joint tenant or tenant in common, your
prospective co-owner other than a spouse must also complete a copy of this
Questionnaire.
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General Information
Name
Age ___ Social Security Number
Residence address
Residence Telephone Number
Occupation
Employer
Business Address
Business Telephone Number
Accredited Investor Status.
2.1 Did your annual income(1), not including the income of
your spouse, during each of the two most recent years (1995
and 1994) exceed $200,000, and do you reasonably expect
your annual income during 1996 to exceed $200,000?
___ Yes ___ No
2.2 Did your joint annual income* with your spouse during each
of the two most recent years (1995 and 1994) exceed $300,000,
and do you reasonably expect your joint annual income during
1996 to exceed $300,000?
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___ Yes ___ No
2.3 Does your individual or joint (together with your spouse)
net worth(2) exceed $1,000,000?
____Yes ____ No
Financial Sophistication. Please respond to the following questions, supplying
as much detail as possible in order to make your answers complete:
__________________
1 For this purpose, your income is the amount of your adjusted gross income (as
reported in your federal income tax return), increased by the following amounts:
(a) any amount by which income from long-term capital gains has been reduced in
arriving at adjusted gross income; (b) any deduction claimed for depletion; (c)
the amount of any tax-exempt interest income received; (d) the amount of any
losses claimed as a limited partner in a limited partnership; (e) vested
contributions to a profit-sharing plan or pension plan; and (f) alimony paid. A
person's income does not include unrealized capital appreciation.
2 For this purpose, net worth means the excess of total assets over total
liabilities.
3.1 Do you consider yourself to have such knowledge and
experience in financial and business matters that you are
capable of evaluating the merits and risks of an investment in
the Units?
___ Yes ___ No
If "Yes," please set forth below the principal bases for your answer
(e.g., investment or business experience, profession, past review of other
investments, etc.).
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3.2 Please list all of the educational institutions you have
attended (including high schools, colleges, and specialized
training schools), and indicate the dates attended and the
degree(s) (if any) obtained from each.
From To Institution Degree
---- -- ----------- ------
3.3 Please list any professional licenses or registrations
held by you, including bar admissions, accounting
certificates, real estate brokerage licenses, investment
adviser registrations and SEC or state broker-dealer
registrations.
3.4 Indicate your principal business experience or other
occupations during the last ten years. (Please list your
present, or most recent, position first and the others in
reverse chronological order.)
From To Name of Employer Position
---- -- ---------------- --------
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3.5 Describe in greater detail your present or most recent
business or occupation, as listed in your answers to Question
3.4. Please indicate such information as the nature of your
employment, the principal business of your employer, the
principal activities under your management or supervision and
the scope (e.g., dollar volume, industry rank, etc.) of such
activities.
3.6 Describe any significant business you engage in or intend
to engage in other than as specified above.
3.7 Indicate by check xxxx which of the following categories
best describes the extent of your prior experience in the
areas of investment listed below.:
Substantial
experience Little or no
or knowledge experience
------------ ----------
Marketable securities
------------ ----------
Government securities
------------ ----------
Municipal (tax-exempt) securities
------------ ----------
Foreign securities
------------ ----------
Foreign currencies
------------ ----------
Stock options
------------ ----------
Commodities
------------ ----------
Securities for which no market exists
------------ ----------
Limited partnerships
------------ ----------
Venture capital funds
------------ ----------
Real estate programs
------------ ----------
Tax deferred investments
------------ ----------
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3.8 For those investments as to which you indicated
"substantial experience or knowledge" above, please answer the
following additional questions by checking the appropriate
answer:
3.8.1 Do you make your own investment decisions
with respect to such investments?
______ Always ______ Sometimes
______ Usually ______ Rarely
3.8.2 What are your principal sources of
investment knowledge or advice? (You may check more
than one.)
______ First hand experience with industry
______ Financial publication(s)
______ Trade or industry publication(s)
______ Banker(s)
______ Broker(s)
______ Investment adviser(s)
______ Attorney(s)
______ Accountant(s)
3.8.3 How many years of experience do you have
with each of the following types of investments?
Marketable Securities:Number of years ___
Securities for which
no market exists: Number of years ___
Limited partnerships:Number of years ___
Venture capital funds:Number of years ___
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3.9 Indicate by check xxxx whether you maintain any of the
following types of accounts over which you, rather than a
third-party, exercise investment discretion, and the length of
time you have maintained each type of account.
Securities
(cash) __ Yes __ No Number of years ___
Securities
(margin) __ Yes __ No Number of years ___
Commodities __ Yes __ No Number of years ___
3.10 Have you ever previously purchased securities which were
sold in reliance upon the private offering exemption provided
in Section 4(2) of the Securities Act?
___ Yes ___ No
3.11 In connection with your evaluation of the merits and
risks of a prospective investment in the Units, will you be
relying in part on the advice of a purchaser representative or
representatives?
___ Yes ___ No
If "Yes," give the name and address of such purchaser
representative or representatives.
3.12 Please provide in the space below any additional
information which would indicate that you have sufficient
knowledge and experience in financial and business matters so
that you are capable of evaluating the merits and risks of
investing in securities of an enterprise such as the Company.
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The undersigned understands that the Company will be relying on the accuracy and
completeness of the undersigned's response to the foregoing questions and the
undersigned represents and warrants to the Company as follows:
(i) The answers to the above questions are complete and correct and may be
relied upon by the Company in determining whether the offering and sale of the
Units to the undersigned is exempt from registration under the Securities Act of
1933, pursuant to Regulation D, or otherwise. If, prior to the closing of the
sale of Units to the undersigned, there should be any change in the information
stated herein, or any of such information should become incorrect or incomplete,
the undersigned agrees promptly to supply corrective information to the Company.
(ii) The undersigned has read and is familiar with the Confidential
Private Placement Memorandum of the Company relating to the offer and sale of
the Units, and understands that the undersigned is invited to ask questions of,
and receive answers from, authorized officers and other representatives of the
Company concerning the Company or the proposed investment in the Units by the
undersigned, and to obtain any additional information, to the extent that the
Company possesses such information or can acquire it without unreasonable
expense, necessary to verify the accuracy of the information concerning the
Company which is in the Confidential Private Placement Memorandum.
In witness whereof, I have executed this Questionnaire this ____ day of
_______, 1996.
Signature:______________________________________
Print name:____________________________________
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